Sexual Orientation and the Canadian Human Rights Act

Toronto, Ontario
August 6, 1992

Captain Birch had a successful career in the Canadian Armed Forces until
he declared his homosexuality. As a result of his revelation, his commanding
officer advised him that the Armed Forces policy was to make him ineligible
for promotions, postings, or further military career training strictly
because of his homosexuality. Captain Birch, feeling humiliated and stigmatized,
decided he could no longer bring himself to work under those conditions.

What else could he have done?

The Canadian Human Rights Act prohibited discrimination on the
grounds of race, national or ethnic original, colour, religion, age, sex,
marital status, family status, disability, and conviction for which a
pardon has been granted, but it didn't say anything about sexual orientation.

Undaunted, Birch and others asked the courts to find the absence of a
declaration forbidding sexual orientation as a ground of discrimination
in s. 3 of the Canadian Human Rights Act to be a violation of
the equality rights guaranteed by s. 15(1) of the Canadian Charter
of Rights and Freedoms.

The federal government begged to differ.
On one hand, it agreed that, although sexual orientation wasn't one of
the protected grounds listed in s. 15(1), it should be included by way
of analogy. On the other hand, the government disagreed insofar as omitting
sexual orientation from the Canadian Human Rights Act constituted
discrimination. In other words, it said that while it can't pass
laws that discriminate against homosexuals, it can pass laws that don't
include protection for homosexuals.

The Ontario Court of Appeal ruled in the Captain's favor.

The court finds that although sexual orientation isn't specifically mentioned
in s. 15(1), it is indeed an "analogous" ground of discrimination.
It added that omitting sexual orientation from the Canadian Human
Rights Act constituted discrimination because it lead to a failure
to provide an adequate manner in which to deal with the prejudicial treatment
of homosexual members of society. In short, by not including sexual orientation,
the act suggests that discrimination is acceptable.

What would change as a result of the case?

Sexual orientation was to be "read into" the Canadian Human
Rights Act as one of the grounds of prohibited discrimination. That
meant that whenever someone read the section, they had to understand that
"sexual orientation" was also covered under the Act.

Future Fact

Sexual orientation will be formally added to the Canadian Human Rights
Act on June 20, 1996.